Allen v. USA, No. 3:2015cv02079 - Document 4 (N.D. Tex. 2015)
Court Description: Order Accepting Findings and Recommendation of the United States Magistrate Judge re: 2 Findings and Recommendations on Motion re: 1 Motion to Vacate under 28 U.S.C. 2255, filed by Rodney B Allen. (Ordered by Judge Ed Kinkeade on 6/18/2015) (ndt)
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Allen v. USA Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RODNEY B. ALLEN, #28935-077 Movant-Defendant, vs. UNITED STATES OF AMERICA, Respondent-Plaintiff. ) ) ) ) ) ) No. 3:96-CR-256-K ORDER ACCEPTING FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE After reviewing all relevant matters of record in this case, including the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and any objections thereto, in accordance with 28 U.S.C. § 636(b)(1), the Court is of the opinion that the Findings and Conclusions of the Magistrate Judge are correct and they are accepted as the Findings and Conclusions of the Court. Movant’s Objections filed on June 2, 2015 are OVERRULED. For the reasons stated in the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, the post-judgment motion for relief from judgment is CONSTRUED as a successive motion to vacate under 28 U.S.C. § 2255 that should be TRANSFERRED to the United States Court of Appeals for the Fifth Circuit pursuant to Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002) and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). The Clerk of the Court is DIRECTED to (1) terminate the post-judgment motion in this criminal case; (2) open a new habeas case for administrative purposes only; (3) Dockets.Justia.com file the post-judgment motion as a § 2255 motion to vacate filed April 28, 2015 in that new case; (4) directly assign the new case to the same District Judge and Magistrate Judge as in this case; (5) file a copy of the Findings, Conclusions, and Recommendation of the United States Magistrate Judge, defendant’s objections, and the order accepting those Findings, Conclusions, and Recommendation, and the judgment in that new case; and (6) and without further judicial action, immediately TRANSFER the newly opened § 2255 action to the United States Court of Appeals for the Fifth Circuit. Movant’s Motion for Extension of Time and Motion for Appointment of Counsel, both filed on June 2, 2015, are hereby DENIED. In the event that the movant files a notice of appeal, he is informed that he must pay the $505.00 appellate filing fee or submit a motion to proceed in forma pauperis that is accompanied by a properly signed certificate of inmate trust account. SO ORDERED. Signed June 18th, 2015. ED KINKEADE UNITED STATES DISTRICT JUDGE 2
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